R v Johnson
[2019] NZHC 111
•10 May 2019
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2017-027-000774
[2019] NZHC 111
THE QUEEN v
PAUL MALCOLM JOHNSON FRANK KOKIRI ROTA JASON WIREMU WILLIAMS
Hearing: 10 May 2019 Appearances:
S J Barnaart for the Crown N S Leader for P M Johnson J A G Moroney for F K Rota D J Blaikie for J W Williams
Judgment:
10 May 2019
SENTENCING NOTES OF POWELL J
[Redacted version]
R v JOHNSON & ORS [2019] NZHC 111 [10 May 2019]
[1] Paul Johnson, Frank Rota and Jason Williams you come up for sentence today, along with Linton McIntyre, after each pleading guilty to a charge of kidnapping, and in Mr Johnson and Mr Rota’s cases, two additional charges of injury with intent to injure.
[2] As I have explained in Court this morning, Mr McIntyre was also due to be sentenced today but was admitted to hospital last night. Given that there was no time to make other arrangements for your sentence this morning and indeed it is important that the sentencing proceed, with the consent of all parties your sentencing has proceeded this morning. Mr McIntyre will now be sentenced at another date to be arranged with the Registrar.
[3] The charges to which you and Mr McIntyre have pleaded guilty arose out of events that took place at a residential address in Paihia (“the Paihia property”) on 10 March 2017. Your guilty pleas came at the end of three weeks of trial, at the conclusion of the Crown evidence. The summary which I will give as to what occurred represents my conclusions based on the evidence that I heard at trial, including the evidence of all four complainants, the Police and forensic evidence and the evidential interviews given by both Mr Rota and Mr McIntyre.
What happened on 10 March 2017
[4] On 10 March 2017 Victim A, Victim B and Victim C had just finished breakfast at the Paihia property, and Victim A and C were preparing to go to work later that morning.
[5] Mr McIntyre and Mr Rota arrived at the property by car and came to the door. As Mr McIntyre was a good friend of Victim B’s they were invited in, despite Mr Rota wearing various Head Hunter related gang insignia.
[6] Mr McIntyre proceeded to have a conversation with Victim B about the whereabouts of Boy Marsh (“Boy”), a member of the Black Power gang who he and
the others accompanying him were trying to locate on behalf of Maurice Reti, an associate who at that time was serving a sentence of imprisonment.
[7] Within a short time of Mr McIntyre and Mr Rota arriving at the Paihia property, Mr Johnson, Mr Williams and a further unidentified offender arrived in another vehicle and also entered the house.
[8] Shortly afterwards, Victim A made preparations to leave the Paihia property and went to pick up her iPad and iPhone that were sitting in the lounge. However, Mr Rota placed his hand over the two devices and told her “You're not going anywhere”. At this point Victim A began to feel unsafe and realised she was not free to leave the house.
[9] Victim A asked Victim C what was going on and he told her to sit down and that everything would be ok. From that point until after dark that evening, some 10 to 12 hours later, Victim A, Victim C and Victim B were effectively held captive at the Paihia property. They were confined to the lounge and kitchen area of the home and had to get permission to walk down the hallway to use the bathroom. Having heard the evidence presented in the course of the trial I accept they did not feel they were free to leave at any point and had justified fears for their safety if they were to try.
[10] The initial focus of the offenders, including yourselves, was the location of Boy but at various points the victims were also asked about another person of interest, Sarina, Mr Reti’s wife, who had not only gone off with Boy while Mr Reti was in prison shortly after she had married Mr Reti, but who it appears had made a determined effort to appropriate assets Mr Reti considered to be his own. However, the three victims did not know where either Boy or Sarina were, and did not know how to contact them.
[11] After participating in the initial inquiries about Boy and Sarina, Mr McIntyre took one of the vehicles to get petrol, and then was away from the Paihia property for an extended time – perhaps some six to seven hours in total.
[12] After Mr McIntyre had departed Victim C was instructed to call his employer, Victim D, and tell him to come to the Paihia property. Victim C did not believe he had a choice in making that request and complied as directed. A short time later Victim D arrived at the Paihia property.
[13] After entering the house, and as he walked into the kitchen, Victim D was punched in the head by Mr Rota, causing him a blood nose and injuries around his eye. He received further punches from the other offenders’ present, apart from Mr Williams (who appears to have been largely carrying out duties as the lookout or perhaps as the ‘tech’ man). From that point Victim D too was held at the Paihia property and prevented from leaving.
[14] Following the arrival and initial assault of Victim D the level of violence significantly increased as the remaining offenders, again apart from Mr Williams, continued to seek information about Boy and Sarina from the victims and in particular Victim B and D. Like the other victims, Victim D did not know how to get in touch with either Boy or Sarina. In addition to questioning the victims with regard to the whereabouts of Boy and Sarina, questions were also asked regarding a portable sawmill apparently owned by Boy and located on Mr McIntyre’s property, which Victim B, Victim C and Victim D had expressed an interest in purchasing and in relation to which had visited Mr McIntyre the day before.
[15] As the day wore on the offenders also became increasingly focused on whether there were significant quantities of illegal drugs at the Paihia property. All the offenders present appear to have spent some time searching the house and garage at various points. Victim D’s car was also searched, and the offenders went through the personal possessions of the victims, before proceeding to use what appears to have been relatively small quantities of drugs that they found on the premises. The apparent discovery of a wallet belonging to Mr McIntyre in Victim B’s room during the search activities in turn led to further questioning and violence towards him.
[16] During this period the following specific acts of violence occurred for which, in addition to his initial punches, Mr Rota has pleaded guilty to a charge of injuring Victim D with intent to injure him, and for which Mr Johnson has pleaded guilty to
three charges of injuring Victim D, Victim B, and Victim C respectively with intent to injure each of them. In particular:
(a)Mr Rota struck Victim D over the head with a golf club;
(b)Mr Johnson also punched Victim D and stabbed Victim D in the leg with a weapon, either pliers and/or a screwdriver;
(c)Mr Johnson slashed Victim B’s left forearm with a serrated bread knife leaving a significant cut; and
(d)using a serrated bread knife Mr Johnson cut Victim C on his neck and on the webbing between the thumb and index finger of his right hand.
[17] It is clear from the evidence however that the specific violence charges to which Mr Rota and Mr Johnson have pleaded guilty do not capture their overall level of violence, both physical and psychological, that the victims were subjected to in the course of their detention by the offenders, and which provide an overall aggravating background to their detention on 10 March 2017.
[18] It is no exaggeration to say that throughout the day the actions of Mr Johnson and the unidentified offender in particular were both unpredictable and intimidatory and at times verging on sadistic, with the treatment of Victim B and Victim D at times, as the Crown submits, verging on torture. Victim B in particular had a glass bong broken over his head by the unidentified offender, who also repeatedly struck Victim B (and indeed forced him to strike himself) with the butt and barrel of a BB pistol to his shins, and also struck him with the shaft of the broken golf club. Likewise, in the course of the afternoon at different times Victim A, Victim D and Victim B were threatened with and/or burnt by a gas torch found at the property, with all three physically assaulted to differing degrees.
[19] Likewise, at least three of the victims were made aware that the power of the offenders over the victims were backed up by a firearm (described as a large silver
revolver), and that Mr Rota and others fired a BB pistol indiscriminately around the lounge where the victims were being held.
[20] As time went on and Mr McIntyre did not immediately return, Mr Johnson then took Victim A’s car to look for him on at least one occasion.
[21]Mr McIntyre eventually returned to the Paihia property late in the afternoon.
[22] The ordeal for the victims finally ended when the offenders gave up attempting to coerce information with regard to Boy, Sarina or drugs. However, in leaving the offenders specified various payments the victims would have to subsequently make, as well as removing a number of items of property belonging to the victims, including but not limited to cell phones, clothing, medical and electronic items. There is however considerable doubt as to exactly what was taken or by whom.
[23] After the offenders had departed the victims also left the property. After dropping Victim D home the other three took shelter at a friend’s place. Although all were suffering injuries to various degrees none sought immediate medical attention for fear of the consequences, nor did any immediately notify the Police as to what had occurred.
[24] In the end the severity of Victim B’s injuries and the effect it had on his pre- existing medical condition required his hospitalisation and required an operation to his knee, while Victim A and Victim C later also sought medical attention for certain of their own injuries.
[25] Even more substantially, while by the time of trial the victims’ physical injuries had healed, each of the victims remained traumatised to an extent at the time that each gave evidence. Victim B, Victim A and Victim C all ultimately fled the Bay of Islands region because of their ongoing fear for their own safety and the safety of their respective families, with Victim A in particular having to walk away from her job and family. It was clear from the evidence of Victim C that the events of 10 March 2017 had continued to have a significant effect on Victim A and indeed it was Victim A who first raised the issue with her family and then the Police. Apart from their evidence
only Victim C has provided a victim impact statement and he has noted that the incident had affected him and that he is going to have to “watch his back” into the future, that he “cannot escape” what occurred on 10 March 2017. Worst of all, the difficulty for him is that he has to go back home for his three kids and he is frightened about the consequence of doing that.
Approach to Sentencing
[26] The Sentencing Act 2002 sets out the purposes and principles of sentencing. The primary purposes of sentencing in this case is to denounce the conduct of each of you,1 to provide for the interests of the victims,2 to hold each of you accountable for the harm that you have done,3 and promote a sense of responsibility for your actions.4 Your sentences must also serve to deter you and others from committing similar offences,5 protect the community from you,6 and eventually provide for your rehabilitation and reintegration into the community.7
[27] The principles of sentencing that are of particular relevance in this case are the need to take into account the seriousness of your respective offending,8 the effect of the offending on the victims9 and to achieve consistency with appropriate sentencing levels.10 It is also necessary to impose the least restrictive outcome that is appropriate in the circumstances.11
[28] Determining an appropriate sentence for each of you involves three steps. First, the “starting point” must be determined. The starting point is a term of imprisonment reflecting the seriousness of the offending for which each of you has pleaded guilty. The second stage involves adjusting that starting point to take into
1 Sentencing Act 2002, s 7(1)(e).
2 Section, 7(1)(c).
3 Section 7(1)(a).
4 Section 7(1)(b).
5 Section 7(1)(f).
6 Section 7(1)(g).
7 Section 7(1)(h).
8 Section 8(a).
9 Section 8(1)(8).
10 Section 8(e).
11 Section 8(g).
account relevant personal circumstances for each of you. Finally, I must consider whether a discount is appropriate for your guilty pleas and, if so, how much.
Assessment of starting point generally
Kidnapping
[29] I agree with the approach proposed by the Crown that the lead charge for the purposes of sentencing each of you should be the kidnapping charge, given in particular it is the charge that links all of the offenders including Mr McIntyre as well as the specific violence charges.
[30] As you have heard the Crown and defence counsel have all referred to a number of authorities to assist the me in determining an appropriate starting point.12 There is no dispute that there is no case setting out a clear tariff, or guideline in relation to kidnapping. On the contrary the Court of Appeal has said there can be “an infinite variety of circumstances which underlie the crime of kidnapping”,13 which in the context of this case is not particularly helpful. It is however possible to compare kidnappings in terms of the length of detention, the extent of pre-meditation, the number of offenders involved, whether there has been gang involvement and the level of violence that has taken place.14
[31] I have undertaken a review of the cases that counsel have referred me to and having looked at those cases one of the things that is shows clearly is that there is quite a divergence of approaches by different Judges in different courts in assessing a starting point. It seems, however, that it is the cases involving aggravated violence which tend to have justified starting points in excess of 10 years’ imprisonment.15 Cases involving moderate or lower level violence tend, generally, to have starting
12 Ridge Hemara-Watts v R [2017] NZCA 306; R v Salt [2017] NZHC 1979; R v Martin CRI-2006- 055-2734; Turner v R [2018] NZCA 175; and Fatu v R (2012) 26 CRNZ 106; R v Kaka [2013] NZHC 2151; R v Wharton [2003] 20 CRNZ 109; R v Warren [2017] NZHC 1465; and R v Hansen [2017] NZHC 449; R v Tozer [2010] NZCA 7; and Chahil Ors v R [2010] NZCA 244.
13 R v Hall CA296/05, 28 February 2006, at [26], citing R v Wharton CA374/02, 27 March 2003.
14 R v Liev & Ors [2017] NZHC 2253 [18 September 2017] at [25].
15 For example, see R v Shen [2007] NZCA 67; R v Li CA299/05, 1 November 2006; and R v Hall
CA296/05, 28 February 2006.
points ranging from around three years to just over seven years.16 Ultimately, as I have noted however, as the Courts have said many times, these cases are fact specific.17
[32] Ms Barnaart for the Crown has submitted that the offending in this case makes it more serious than two of the cases that she mentioned of Harema-Watts18 and Salt19 by virtue of the significant length of detention in this case, the clear gang connections and use of them in the offending, as well as the number of offenders. In Ms Barnaart’s submission, a global start point should be applied for all offenders of around five years imprisonment.
[33] The injuries suffered, and the degree of violence in this case were not as serious as a number of the cases identified. However, I consider the unpredictable, somewhat capricious and occasionally sporadic nature of the violence in this case, together with a prolonged period of detention, significant aggression and violence, make it a serious case of kidnapping by detention.
[34] The kidnapping charge, looked at in isolation, includes aggravating factors of the unlawful presence in Victim B’s house; the use of violence and weapons; the presence of a firearm; a gang connection (although as you have heard me discuss that is really a relatively minor aggravating factor); and the extent of harm to the victims. The Crown has also submitted as you have heard, that there was a degree of premeditation and planning. However, although I accept there was an overall plan to recover property for Mr Reti, what eventuated at the Paihia property was ultimately quite different and more serious than anything envisaged by the plan. I do not therefore consider that the kidnapping offending (and indeed the violence accompanying it), was premeditated.
[35] In this case too there were multiple offenders involved in the kidnapping and each played a different role, making the facts of this case difficult to compare with
16 For example see, R v Wyatt [2009] NZCA 464; R v Martin CRI-2006-055-2734; Cook v R [2010] NZCA 87; Ridge Hemara-Watts v R [2017] NZCA 306; R v Salt [2017] NZHC 1979; R v Kaka [2013] NZHC 2151; R v Warren [2017] NZHC 1465; R v Hansen [2017] NZHC 449; R v Tozer [2010] NZCA; and R v Hill HC Rotorua CRI 2005-063-3096.
17 R v Martin CRI-2006-055-2735 at [24].
18 Ridge Harema-Watts v R [2017] NZCA 306.
19 R v Salt [2017] NZHC 1979.
those of other kidnapping cases. I note, as you are all aware, that s 66(2) liability in terms of the Crimes Act 1961 was withdrawn, therefore, each of your respective liability as a party to kidnapping must be considered under s 66(1) alone. In those circumstances there is not equal culpability between each of you with regard to the seriousness of the offending but, as you have heard me say to counsel, each of you must be sentenced based on what you have individually done and the steps that you have each taken to aid and abet what others have done at the Paihia property on 10 March 2017. In this regard it is important to note again the contribution of the unidentified fifth offender who conducted a significant part of the violence and intimidation but who was never located or charged, despite being somewhat improbably accompanied by some sort of lap dog in the course of the incident.
Injuring with intent
[36] Looking at the injuring with intent charges at an overall level, I note that the Crown seeks an uplift for the violent offending with regard to Mr Johnson and Mr Rota in respect of those charges. There is no dispute that the tariff decision of R v Nuku applies.20
[37] In Nuku Glazebrook J, delivering the judgment of the Court of Appeal, identified three bands applicable to offending under ss 189(2), 188(2) and 191(2) Crimes Act 1961 (which includes the charge of injuring with intent to injure).21 Those bands are:22
(a)Band one – few aggravating factors, relatively low-level violence, culpability better related on a less serious charge: and where a sentence less than imprisonment can be appropriate.
(b)Band two – is where there is three or fewer of the aggravating factors listed in the case of R v Taueki.23 A starting point of up to three years can be appropriate.
20 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
21 At [37].
22 At [38].
23 R v Taueki [2005] 3 NZLR 372 (CA).
(c)Band three – three or more of the Taueki factors, with the combination of features being particularly serious: a starting point of two years up to the statutory maximum will apply.
[38] If I was considering the injuring with intent to injure charges only, I would consider it to fall within band two and three of Taueki. The use of weapons, attacking the head, injury, violence, multiple attackers and home invasion are all clearly aggravating features in this case. But the injuring with intent to injure charges in respect of both Mr Johnson and Mr Rota cannot stand alone. The violence charges were in fact isolated and serious examples of the overall violence occurring as part of the kidnapping and in particular the roles of Mr Rota and Mr Johnson in that kidnapping.
[39] As a result, I consider that the culpability for the multiple attackers and home invasion factor is best assessed under the kidnapping offence, so as to avoid double counting. Furthermore, although not down playing the effect on the victims, the seriousness of the physical injuries and the extremity of the violence was not at the highest end of the spectrum. The injuries did not prove fatal or otherwise cause long term or permanent disability and in the spectrum of violence offences, the charge of injuring with intent to injure is not the most serious so as to be classified as extreme.
[40] As with the kidnapping charge the ultimate starting points on the injury charges must reflect the overall culpability for each offender, rather than a mathematical calculation of aggravating factors.24 As a result, having made those overall comments I consider the starting points for kidnapping and the injuring with intent to injure charges for each defendant as they apply.
Mr Johnson’s starting point
[41] I turn first to you Mr Johnson, in order to identify an appropriate starting point for the charge of kidnapping and the three charges of injuring with intent to injure Victim C, Victim B and Victim D.
24 At [30] and [42].
[42] In addition to the general comments I have made in relation to both charges, as you have heard, the Crown submits that you were the most noted of the offenders before the Court, and that your actions heightened the fear of the victims, not only ensuring the ongoing detention on the day but also led to the considerable delay in reporting the matter to the authorities. The Crown submits that your violent offending alone would normally attract a sentence of at least three years imprisonment being offending within band two to three of Taueki.
[43] Mr Leader accepts on your behalf that there was some level of premeditation and that the knife and the screwdriver were in use. He submits however that the injuries cannot be regarded as serious, that they were not potentially fatal or as such to cause long and permanent disability; that the violence cannot be classed as extreme and that in the spectrum of violent offences the charge of injuring with intent to injure as noted sits around the middle. Furthermore, it is submitted by Mr Leader that although the factors of a home invasion and multiple attackers are present, the culpability of this is best assessed under the kidnapping to avoid double counting. As you have heard Mr Leader submitted that, in totality, a starting point of four years imprisonment is appropriate for your offending.
[44] I fix the starting point in light of the totality of your offending including both the kidnapping and intent to injure charges to which you have pleaded guilty,
[45] I consider your offending was indeed the worst of those involved who have been charged, due to your violent and aggressive role generally, including maintaining an ongoing detention and the interrogation of the victims, particularly Victim D and Victim B. You also took Victim A’s car (although as Mr Leader noted, you did put petrol into it), and you were visible going through and taking property belonging to the victims. Likewise, you were seen by at least two of the victims bringing into the house a large revolver which you provided to Mr Rota for the purpose of intimidating the victims.
[46] There is no doubt you employed much more violence in comparison to the other offenders before the Court today. The specific offences to which you have pleaded guilty include cutting Victim B on the arm with a knife; punching Victim D;
stabbing him in the legs with pliers or a screwdriver; and cutting Victim C to both his neck and head, with that attack occurring after you had threatened Victim A and Victim C sought to protect her.
[47] Even though factors of aggravation may constitute separate offences, as it does in this case, it does not mean that they cannot be considered together as part of the sentencing exercise as a whole.25 Taking these various matters together I consider your culpability warrants a higher starting point than in the Martin26 and Salt27 cases referred to by the Crown and I fix your starting point at six years imprisonment.
Mr Rota’s starting point
[48] I turn now to Mr Rota, on your charge of kidnapping and one charge of injury with intent to injure Victim D.
[49] Like Mr Johnson the Crown submits that your culpability is high, and significantly higher than Mr Williams’ and Mr McIntyre’s involvement in the offending given your actual physical violence towards the victims including the particular injury charge to which you have pleaded guilty. In particular, the Crown submits, that a stand-alone sentence for the injuring with intent to injure charge would be around two years imprisonment as your offending on the injury charge alone falls within band two to three of Taueki.
[50] As you have heard, Mr Moroney on your behalf, has submitted that the cases referred to by the Crown are more serious than the offending in this case. As you have heard, Mr Moroney referred me to the decision in R v Tozer28 for guidance, although he submitted that the injuries suffered and the vulnerability of the victim in that case were more serious than what occurred at the Paihia property.
[51] In relation to the injuring with intent to injure charge, Mr Moroney accepted that, if viewed in isolation, it would be band two or three of Nuku but, like Mr Leader,
25 R v Wharton (2003) 20 CRNZ citing R v Pattison 92002) 19 CRNA 407.
26 R v Martin CRI-2006-055-2734.
27 R v Salt [2017] NZHC 1979.
28 R v Tozer [2010] NZCA 7.
warned against also double counting this as an aggravating factor of the kidnapping charge. In Mr Moroney’s submission he suggested an appropriate starting point that took account of both of the charges faced by you would be in the region of two years and six months imprisonment.
[52] As with Mr Johnson, I take the approach of fixing a starting point that recognises the totality of your offending in relation to both of your charges.
[53] I consider you to be the leader of the offending. It was you who initially would not let Victim A leave, thereby initiating the detention of Victim A, Victim B and Victim C, and your initial assault on Victim D likewise initiated the rapid escalation in violence after his arrival. The violent assault on Victim D involved punching him in the head, injuring his eye and nose and subsequently included striking him on the head with a golf club. The assault on Victim D therefore includes aggravating factors of violence; injury to the victim; an attack to the head; multiple attackers and gang connections which were made clear to the victims.
[54] As noted above, however, the specific injury charge to which you have pleaded guilty does not capture the overall level of violence that the victims were subjected to during the course of their detention, in which you had a significant role as much because of your imposing physical presence, your actions in firing a BB pistol around the lounge where the victims were being held. And as the acknowledged leader you also played a significant role in the ongoing interrogations, as well as in the demands made at the conclusion of the kidnapping.
[55] Taken together and viewing your role in the kidnapping as well as the specific injury charge, I consider a starting point of five and a half years’ imprisonment is appropriate.
Mr Williams’ starting point
[56]Mr Williams, I now turn to your single count of kidnapping.
[57] The Crown submits that your role was to make sure the property was secure and, in doing so, to make sure that the detention was not interrupted and that the other offenders were free to interrogate the victims.
[58] Your counsel, Mr Blaikie, has cited a number of authorities that are helpful in determining a starting point for your offending. He submits that any starting point should attract a lower starting point than those reached in the cases to which he has referred.29 In his submission a sentence of 18 months or no more than two years is appropriate in respect of the kidnapping charge and, as you have heard this morning, he indeed went as far as to say that 18 months was a maximum.
[59] In setting your starting point I accept that you had a significantly lesser role in the offending that took place on 10 March 2017 and that you were primarily there on that day in relation to Mr Reti’s property recovery issues. It is clear that apart from being seen putting Victim D into a headlock, that Victim D himself regarded as half- hearted or not serious, you were otherwise not involved in the violence, and the victims were consistent in their reports of you sitting at the back of the lounge looking at various electronic devices, although those included a number taken from the victims. In addition, it was accepted by the victims that at the conclusion of the kidnapping you intervened to have Victim A’s iPad returned to her. The cases cited by the Crown do not therefore provide particular assistance with your involvement in the events of 10 March. Notwithstanding that, I consider you were present at the time at least some of the violence was being inflicted and the kidnapping as a whole ultimately involved your unlawful presence in one of the victim’s homes and while you were present in the lounge on that day your presence was, at the very least, an implied threat to the victims present.
[60] Taking account of the factors relevant to your offending in relation to the wider events and bearing in mind the cases referred to by counsel I consider a starting point of two years’ imprisonment is appropriate to reflect your culpability in the kidnapping.
29 R v Kaka [2013] NZHC 2151; R v Warren [2017] NZHC 1465; R v Wharton [2003] 20 CRNZ 109; and R v Hansen [2017] NZHC 449.
Adjustments for personal circumstances
Mr Johnson’s personal circumstances
[61] I now turn to the second stage of my analysis which is the adjustments for personal circumstances. Turning first to Mr Johnson, your Pre-sentence or PAC report and criminal history show that you have managed to offend across the spectrum since you were first convicted in 2006 when you were 18. Since then you have accumulated convictions for some 29 drug offences, seven driving offences, three dishonesty offences and six violence offences. The latter includes a conviction for wounding with intent to cause grievous bodily harm committed only a month before the current offending for which you have also received a first strike warning and you are currently serving a seven-year sentence for that offence, although I note that that sentence is currently under appeal. You were in fact somewhat fortunate that at the timing of that offence and the present offending and the way in which the law operates, that you have received a second first strike warning, rather than a second strike warning as that would have made a considerable difference to the sentence that I am required to impose today as it would have been without the benefit of parole. The PAC report goes on to assess your risk of re-offending as medium and your risk of harming others as high. Particular issues indicated in the PAC report are your criminal associates and a propensity for violence. In the interview with the probation officer you apparently disputed having a propensity for violence, but this appears consistent with the evidence that I heard in the course of the trial.
[62] The PAC report recorded you as being sorry for what had happened, but you denied using weapons and suggested that the injuries were not as serious as they were made out to be. Although Mr Leader has submitted on your behalf that, notwithstanding those comments, you have genuine remorse, it does not indicate to me that there is genuine remorse present over and above the acceptance of responsibility that you have shown by way of your guilty pleas.
[63] As you have heard me discuss with both Mr Leader and Ms Barnaart, there is an issue with regard to your other first strike offence and Ms Barnaart has conceded that the sentence today should not be one that “is overly crushing in the circumstances.” As you have heard me discuss with counsel, while accepting that in
principle it is difficult to achieve in practice. As I have discussed with Mr Leader and he accepts, it is not appropriate to make this sentence concurrent with your earlier sentence, as even if you are not successful in your appeal of that other sentence that would mean you are not in fact held accountable for the present offending. Likewise, if I was to reduce the end sentence in this case and you were successful on appeal, that in turn would mean you were not being appropriately held to account for this matter.
[64] Given these factors and taken together with the other material in the PAC report, I am satisfied that there is no basis for any discount for personal circumstances, or other totality considerations. However, taking into account the closeness of the present offending with your other first strike offence and the sentence imposed for that offending, I do not consider a further uplift for your previous convictions is required. Your sentence, prior to considering the impact of your guilty plea, therefore remains at six years.
Mr Rota’s personal circumstances
[65] I turn now to Mr Rota. Your PAC report makes it clear you are well supported by your partner of 24 years and indeed I have witnessed the support of your family throughout the trial and again today. You have five children with your partner and you were described in the PAC report as a devoted family man by your partner, a man with “good heart – sometimes too good”. As Mr Moroney has indicated, you have a moderate offending history. You have been sentenced to one previous term of imprisonment for drug offending. You have in the past been a regular cannabis user and a social methamphetamine user. At the time of your offending you were an active and longstanding member of the Head Hunters motorcycle gang. Since the offending you have injured your back and you have now advised that you have left the gang. As a result, while in custody, there are reports indicating that you have been victim of a number of assaults resulting in significant physical injuries.
[66] I note that in the PAC report it categorises your risk of harm to others and risk of re-offending as high because of the seriousness of the current charges which have interpreted as a significant escalation in offending. As I have discussed with Mr Moroney, I am not sure that that is a helpful analysis in terms of the offending.
[67] The PAC report records you have not expressed any remorse and that you did not agree with the Police summary of facts, but it did note that you had a realisation that your existing way of life was not what you wanted for your family.
[68] In addition to the matters set out in the PAC report, a report pursuant to s 27 of the Sentencing Act has also been submitted on your behalf seeking to set out a plausible connection between your background of physical abuse from your father from a young age and your offending behaviour. It does set out that information but the report, as Mr Moroney noted, also went on to note that you appear to also have had significant opportunities as a result of playing league until injury halted that career as well as some very strong family relationships. The s 27 report aligns with the PAC report in noting your drive to go home and rebuild your life with your whānau.
[69] In addition to these reports it has been submitted on your behalf that custody has been more onerous for you due to your physical health, in particular your back injuries and it’s been noted that you have spent 19 months in custody pending trial as well as five months’ on electronically monitored bail with 24-hour curfew.
[70] Taking these various matters into account I do not consider an uplift is warranted for your previous convictions, having regard to the type of those convictions and the length of time that has passed. Furthermore, given the inconsistency between the PAC report and the s 27 report, I do not consider that any discrete discount for remorse is available for you. I am also clear that there is otherwise nothing in the s 27 report to justify a further discount on your sentence. Having said that, I am satisfied that your decision to leave the Head Hunters gang is significant. This is noted in both the PAC and s 27 reports. The comments made in those reports do not just reflect statements you have made but appear to be supported by prison records. It is clear that this step has had a significant cost to you, apparently both financial and physical, and that should be acknowledged. In making your decision to leave the gang it does suggest to me that you are at last starting to put your partner and your family first and I see it as an important step to your eventual rehabilitation and reintegration into the community and to perhaps to fulfilling your dream in reinvigorating the local league club. I therefore consider that there should be a discrete discount of six months for this leaving a term of imprisonment of five years and in addition to that there should
be credit for the five months on electronically monitored bail, taking you to a sentence of four years and seven months imprisonment, subject to further adjustment for the guilty plea.
Mr Williams’ personal circumstances
[71] I now turn to the relevant personal circumstances for you Mr Williams. Mr Williams you are now 38 years old. You have three children from your first relationship and recently started a new relationship with a woman who also has a young child and the PAC report notes the joy that you have found with your two youngest children. You acknowledge that until recently you have been a heavy user of methamphetamine. You are a member of the Head Hunters gang, however, the PAC report notes that you are now in a position where you do not need to engage in any unlawful activities, although I must confess to some scepticism of that statement. The PAC report notes that you would like to withdraw yourself from the gang completely and focus on your family as it is only now that you have realised that you have missed a lot of time with your children due to having spent so much time in prison in the past. Furthermore, the report asserts that you understand and accept that by not taking any steps to stop the assaults and acting as lookout for your co-offenders you are guilty of being party to the kidnapping. You indicated that you were sorry to the victims of the offending as it was your understanding that you were going to the Paihia property to repossess a car, presumably for Mr Reti.
[72] The report writer concluded that, although you engaged well in the interview, until you prove your intention to change you must be assessed as having a high risk of reoffending based on your past history and this current serious offending. Your risk of harm is assessed as high due to your membership of the Head Hunters fight club and your long history of serious violent offending.
[73] I note as well that this is in fact your second kidnapping offence with the other having occurred in 2007. While I accept that the circumstances are substantially different, I have ultimately concluded that there should be a modest uplift for your earlier offending, namely an additional two months’ imprisonment.
[74] Other than a discount for a guilty plea, which will be discussed below, I do not consider that there are otherwise any mitigating factors and agree with the PAC report that it is too early to tell in your case as to whether your stated desire to change is genuine. I hope that it is and I note that you in fact have a range of employment skills you could put to good use should you cut your ties to the Head Hunters. In the meantime, the sentence is two years and two months’ imprisonment subject to the guilty plea discount. I also note at this juncture, that although in the normal course of events a community-based sentence could be considered, due to the time that you have already served, Mr Blaikie has not sought a community-based sentence on your behalf and it has not therefore been considered today.
Guilty plea
[75] I now turn to the final part of my analysis that I am required to undertake and that is what discount should be given for your guilty pleas. The Crown accepts that a limited discount for your guilty pleas is available. As noted at the outset those pleas occurred at the conclusion of the Crown case.
[76] The orthodox response to a guilty plea given on the morning of trial is 10 per cent.30 Similarly, where a case had been abandoned and the defendant sought a sentence indication and pleaded guilty prior to retrial, a 15 per cent discount was considered “more than adequate”.31
[77] In this case, it would normally be difficult to see any basis for a significant discount given that each of the complainants was required to give evidence and each was extensively, if somewhat schizophrenically cross examined; almost without exception, each counsel accused the complainants of making up what happened on 10 March 2017, but were then cross-examined by the same counsel on what particular defendants present had or had not done in order to create a better impression in relation to that particular defendant.
30 Harris v R [2018] NZCA 632 at [43].
31 R v R [2017] NZCA 462.
[78] However, in this case, as you have heard counsel submit to me, there was a real risk that the trial may have had to have been aborted. As you are aware the risk arose following the loss of a jury member early in the trial and the impending loss of one more at the end of the third week with everything then left hanging on whether a third and heavily pregnant juror, could complete the trial. Given this uncertainty there was a reasonable likelihood that the trial may have been aborted had you all not entered guilty pleas at the time that you did.
[79] Furthermore, I accept that each of you ultimately pleaded guilty at the first available instance after the ruling that the Crown could not rely on s 66(2) of the Crimes Act. This removed from each of you the liability based on the actions of the other defendants and enabled you to accept responsibility for that which you had each done and for what you have been sentenced today.
[80] Taking these factors into account, I therefore consider a guilty plea discount of 15 per cent is appropriate in each case.
Sentence
[81] Mr Johnson could you please stand. Mr Johnson taking into account the analysis that I have given, applying the guilty plea discount to the other figures means that you are sentenced to five years and one-month imprisonment.
[82] Mr Rota could you please stand. Again, taking into account the various figures that I have mentioned and applying the guilty plea discount, you are sentenced to three years and eight months’ imprisonment.
[83] Mr Williams could you please stand. Mr Williams, taking into account the figures that I have mentioned and applying a guilty plea discount, you are sentenced to 22 months’ imprisonment.
[84] As counsel have no objections I make an order permanently suppressing the names of each of the four complainants.
[85]The defendants may stand down.
Powell J
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